Albright v. Albright , 128 Pa. 381 ( 1889 )

Opinion,

Mr. Justice McCollum:

In the seventh item of his will the testator appointed a time for the final settlement of his estate, directed his executors to pdy out of it the bequests that he had made and that the balance be equally divided into five shares for his five sons, viz.: “one share to Jonas, one share to Peter, one share to Jeremiah, one share to Jacob and one share to Nathan.” This balance would include the price of the farm on which his son Peter then lived. The testator valued this farm at $140 per acre, and he gave to Peter the first and to Jonas the second option to take it at that price. If neither chose to accept it at the valuation he directed that it should be sold by his executors. The bequests referred to were $1,000 each to Jacob and William Ilgenfritz and “the boy Albert,” and $600 to Emma Albright. These were all the bequests then made to be paid by his executors before division.

Items 11 and 12 relate to another legacy to the boy Albert and provide for its payment. They are so connected that they must be considered together in ascertaining the intention of the testator. They give to Albert a legacy of $8,000 and charge it upon the farm if Peter takes it “at the fixed value,” to be paid without interest “ out of the farm ” at his death; but if he does not take the farm, to be paid by the executors out of his share of the estate on final settlement. It will be observed that this legacy is but four dollars in excess of Peter’s share in the farm, and was probably in the mind of the testator the equivalent of it. Peter having taken the farm, the question raised is whether the legac}' is payable out of the undivided estate or out of his share of it.

In support of the construction which casts the burden of this legacy upon the undivided estate, it is assumed that the testator preferred that Peter should take the farm, and that to enforce this preference he deprived him of all interest in it as a penalty for refusing it at the valuation, and, as a reward for compliance with his desire in this particular, he bequeathed one fifth the price of it to Albert subject to a life estate in Peter, and limited his other sons to an equal participation with Peter in the remaining four fifths of it. We cannot assent to this view of the case. A sufficient reason for the option that was given Peter to take the farm at the testator’s price, is found in the fact that he was living upon it. It is true that his acceptance of it postponed the payment of the legacy during his life, and this was of advantage to him, but not at the expense of his brothers. Their shares in the estate were previously created and defined in item 7, and subsequently recognized in the 18th item, where the testator says, “any amounts of money either by note or notes or book account that any of my sons may be owing to me at the time of my death I direct to be deducted from the bequests I made them.” Items 11 and 12 relate to the same legacy and differ only in the time appointed for its payment. It is distinctly charged upon Peter’s property; upon his farm, in one contingency, and upon his share of the estate in the hands of the executors, in another. This construction is sustained by the language of the testator and by his previous disposition of his estate. It accords with natural justice and saves to his other sons unimpaired the shares that he gave them.

The judgment is affirmed.